Confrontation Clause Error in CP Prosecution Harmless

US v. Arce: Police tracked an IP address involved with sharing child pornography to a house in Virginia Beach. They arrived to execute a search warrant and found Arce there, house sitting for his sister. While the search was in progress, officers spoke to Arce outside in their vehicle, questioning him about his use of peer-to-peer software. He eventually admitted to viewing child pornography and gave consent to search his apartment, where officers recovered two cell phones, on one of which “four pornographic thumbnail images” were found. Arce was charged with four counts of receipt and one count of possession of child pornography. After unsuccessfully moving to suppress his statements, Arce went to trial and was convicted on all counts. The district court sentenced him to 130 month in prison and a term of supervised release, including conditions that effectively imposed a lifetime ban on computer usage.

On appeal, the Fourth Circuit affirmed Arce’s convictions, but vacated his sentence with regard to some of the conditions of supervised release. The court first rejected Arce’s argument that his statements to police were taken without proper Miranda warnings, concluding that the district court’s factual findings that he was not in custody at the time were not clearly erroneous. Next, the court addressed the testimony of one of the investigators, who testified as a lay witness about “several Cellebrite Reports that reflected information extracted from Arce’s electronic devices.” Arce claimed that testimony violated the Confrontation Clause because the use of hash values in that report, which were matched up with database results that showed the images were known child pornography images, was testimonial. The court agreed, but found the error harmless as it was “duplicative of the actual evidence,” that is the images themselves, as well as the investigator’s “lay-opinion testimony that he viewed these images and found them to be child pornography.” Finally, the court struck down the supervised release conditions “implementing a ban on internet and computer use,” finding that while they were related to Arce’s offenses there were less restrictive alternatives that could be used. The court also noted that a complete internet ban is “always excessive for ‘non-contact child pornography activity, or similar conduct’ where there was no actual contact with the victim.” The court affirmed a ban on accessing pornography (of any kind), noting Arce’s “self-admitted pornography addition, which eventually escalated into viewing child pornography.